Creating an estate plan (Will, Trust, Power of Attorney, etc.) is a key step in making sure that your wishes are carried out and that your family is taken care of in the way you wish when you pass away. But an estate plan is not a ‘one-and-done’ proposition. Life happens and when it does…well, it may be time to adjust your plan.
Read on for five situations that call for a review and update of your estate plan.
- Your marital status changes. In Massachusetts, a change in your marital status impacts your current estate plan (even if you haven’t created an estate plan!). Marriage confers certain rights, including the right of spouses to inherit from each other. How much of your estate your spouse is entitled to inherit depends on whether you have children together, whether either of you has children from a prior relationship, or whether neither of you has any children. Regardless of your situation, most people prefer to decide for themselves what their new spouse will inherit rather than have the government make that decision. Similarly, divorce impacts your estate plan in that your former spouse is effectively ‘deleted’ as a beneficiary under your Will and removed from fiduciary positions. While this is usually the desired outcome as to a former spouse, the law also removes any of your former spouse’s relatives as beneficiaries and from fiduciary positions which may not necessarily be the intention. For example, a former spouse’s sibling may still be the person you would name as the guardian for your minor children. Further, although the law may “remove” these individuals from your plan, you should update your plan to include appropriate people in their place as beneficiaries and fiduciaries.
- You have a child. The law in Massachusetts provides that if a person dies with a child surviving (or more remote descendants in cases where a child has predeceased the parent) the child will inherit from the parent before assets would pass to anyone else (other than a surviving spouse who is first in line to inherit). However, the law also deems that adult-hood is reached at age 18. That means children who inherit from parents who have not created an estate plan that provides otherwise, will be entitled to receive the full amount of their inheritance at age 18. Prior to reaching age 18, a child’s inheritance will be managed for her by a court-appointed conservator if the parents have not created a Trust to manage their estate for their children. Most parents: 1) would prefer to decide who should be in charge of managing assets for their children rather than have the probate court make that decision; and, 2) do not want their children to have full, unfettered access to the inheritance they leave them at age 18. Creating a Trust that designates the people who will manage assets for their children at their deaths and specifies the ages, or events, at which a child will be entitled to full access to their inheritance allows the parents make these decisions rather than the Commonwealth of Massachusetts.
- You or your spouse are diagnosed with a serious illness. While having a child and getting married (and for some, getting divorced) are joyous life events that merit a review and update of an estate plan, not all life events are good. If either you or your spouse is diagnosed with a terminal illness, or with a serious disease or condition such as Alzheimer’s, Parkinson’s, or dementia, that could result in the need for long-term care, reviewing and updating your estate plan is not just important but often urgent. There may be actions needed to reduce taxes or to preserve assets from being consumed by expensive long-term care costs that should be implemented right away. In addition, it is important to make sure there is documentation in place such as a robust durable Power of Attorney and a comprehensive, up-to-date Health Care Proxy so that you are able to make decisions for a spouse who may lose the ability to do so as a result of the illness. These documents need to be created while the maker still has the capacity to do so.
- Your spouse passes away. Reviewing and updating your estate plan when a spouse passes away is a prudent action to take.
People usually name their spouse to the primary fiduciary roles of Personal Representative, Attorney-in-fact, Health Care Agent, and Trustee. While there is often a back-up named to those roles, reviewing your estate plan to re-visit whether that designated alternate is still the right person to serve and updating your plan to designate a successor to your new primary fiduciary is a smart thing to do.
- One of your fiduciaries or beneficiaries dies or becomes ill. When someone you designated as a fiduciary in your estate plan passes away or becomes ill such that they would no longer be able to carry out those duties, it is time to update your estate plan. Similarly, when a beneficiary dies or becomes ill, a review of the provisions of your estate plan as they relate to that person is sensible. Your estate plan most likely includes a provision directing what should happen to the share of a beneficiary who predeceases you. However, it has been my experience that clients’ thinking often changes when one of their beneficiaries predeceases them and they want to update their plan to change their distribution provisions. Similarly, if a beneficiary of your plan is diagnosed with a disease or condition such as Alzheimer’s or dementia, meet with your estate planning attorney to consider whether leaving money to that person is still a good idea. Many individuals who need long-term care are eligible for needs-based governmental benefits to pay for that care. Receiving an inheritance can cause them to lose that eligibility.
Above are just five of the life events that merit a review and update of an estate plan. Other changes such a significant increase in the value of your estate, relocation to another state, a disability affecting one of your beneficiaries, or even the passage of more than five or six years since your last estate plan review, are additional examples of life events that merit a review of your plan. If any of the above situations applies to you, don’t wait to contact your estate planning attorney to schedule a time to review and update your plan. If you have never created an estate plan, now’s a good time to do so. If we can help you create or update your estate plan, please contact our office to schedule a time to meet with one of our experienced estate planning attorneys.
Attorney Suzanne R. Sayward is a partner with the Dedham law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, elder law, estate and trust settlement and probate. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit our website at www.ssbllc.com or call 781/461-1020.
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